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PROCTOR | May 2016
circumstances referred to, it cannot be said that this
was a case where reasonable minds could differ
as to the existence of exceptional circumstances;
they were clearly established – where sentences
of six months’ imprisonment suspended forthwith
and operational for nine months were appropriate
to reflect the gravity of the offending, while also
recognising that it was very low-level offending, by
a man of advanced years with health problems,
who had no prior history, was genuinely remorseful
and had cooperated by proceeding by way of a full
hand-up committal and entering early pleas – where
those sentences reflect that when the low level of
the offending is considered in all the circumstances
of the case, exceptional circumstances were
established and no actual custodial sentence
was called for.
Application allowed. Appeal allowed. In relation to
each count, the sentence imposed at first instance
is set aside and in substitution for it this court
imposes a sentence of six months’ imprisonment,
suspended forthwith, with an operational period
of nine months.
R v Forster [2016] QCA 62, 15 March 2016
Appeal against Conviction – where the appellant
was convicted of one count of entering a
dwelling with intent – where it was alleged that
the appellant stole about $12,000 from a bolted
safe – where the safe had been washed – where
a small smear of blood was found on a doona
cover inside the bedroom – where the appellant’s
DNA profile matched a swab of the stain on the
doona cover – where police found fingerprints
that could not be identified on a tin, discovered by
the complainant, which had been inside the safe
with money in it – where the tin was in a suitcase
underneath the bed covered by the blood smeared
doona – where, prior to the offence occurring, the
complainant’s daughter, Nicole, had resided in the
house – where Nicole left the house in disarray
and the complainant said she could not collect
her belongings until the house had been cleaned
–
where Nicole was angry at the complainant
for refusing her entry into the house – where the
complainant gave his daughter Kelly a key to
arrange for Nicole’s belongings to be collected –
where the complainant arranged for the house to
be professionally cleaned – where the appellant
gave evidence of an innocent explanation for being
in the house at about the time of the offence –
where the complainant’s daughter, Nicole, gave
the appellant’s partner, who was cold, a doona in
which she and the appellant cuddled – where the
appellant had an injury to his shin that bled when
knocked – where the prosecution did not call the
complainants’ daughters – where the prosecution
failed to exclude a rational hypothesis consistent
with innocence – where in determining whether
a conviction is unreasonable and against the
weight of the evidence the question is whether
on the whole of the evidence it was open to the
jury to be satisfied beyond reasonable doubt of
the appellant’s guilt – where it was open to the
jury to consider the appellant may have been
guilty or may have been involved in some way
in the offence, but it was not open to them to
conclude that the only rational inference was that
the appellant was guilty of the offence – where the
rational explanation, that he was innocently at the
complainant’s house between 20 and 24 March
2014 and that a smear of blood from his injured leg
got onto the doona cover when he was cuddling
Ms Anthony, and that another or others put the
doona on the bed in the main bedroom and
committed the offence after he and Ms Anthony
left, could not be excluded beyond reasonable
doubt – where it was not open to the jury to
conclude that the only rational explanation for the
appellant’s blood smear being on the doona cover
was that he entered the complainant’s residence
and stole the money from the safe.
Appeal against conviction allowed. Guilty verdict
set aside. Instead, a verdict of acquittal is entered.
R v Goulding; R v Goulding, Peters, Potts &
Knox; Ex parte Attorney-General (Qld) [2016]
QCA 65, 22 March 2016
Sentence Application; Sentence Appeal by
Attorney-General (Qld) – where the respondents
pleaded guilty to torture at the District Court
at Southport – where, for the torture offence,
each respondent was sentenced to six years’
imprisonment – where the sentencing judge
declined to make a serious violent offence
declaration in respect of the torture offence –
where the Attorney-General of Queensland filed a
notice of appeal against the sentences imposed
on each respondent – where the Attorney-General
submitted that the: (1) sentence imposed is
manifestly inadequate; and (2) the sentencing
judge erred in not declaring the offence of torture
to be a serious violent offence – where the
Attorney-General alleged that the head sentence
of six years is, in itself, manifestly inadequate, and,
in the alternative, either or both of: (1) the failure
to declare the offence a serious violent offence;
and (2) ordering early eligibility for parole, renders
the sentence manifestly inadequate – where the
Attorney-General submitted that the sentencing
judge failed to properly apply the parity principle
–
where the Attorney-General alleged that the
sentencing judge erred in unduly confining the
exercise of the discretion to make a serious
violent offence order by limiting the consideration
to previous decisions – where his Honour’s
sentencing remarks were made after he had
recounted in detail the course of the offending, the
complainant’s injuries and continuing suffering, the
pleas of guilty, the offenders’ respective ages, their
antecedents and time spent in custody – where
this sequence indicates that those were all factors
which were taken into account in deciding how the
discretion was to be exercised – where it remains
to note that while the appellant questioned whether
the offending here was within the norm for torture,
no submission was made, nor could it creditably
have been made, that the circumstances of the
offending compelled the exercise of the discretion
in favour of a declaration such that the decision
not to make a declaration was so unreasonable
that no court acting reasonably could have made
it – where it is common ground that the injuries
to the complainant here are broadly comparable
with those sustained by the complainant in R
v Melling & Baldwin [2010] QCA 307 – where
drawing upon this comparative analysis of the
present case with Melling & Baldwin, and having
regard to the circumstances relevant to sentencing
here to which have been referred, it is concluded
that although the sentences are towards lenient in
respect of the actual time required to be served,
they are not unreasonable or plainly unjust –
where the sentences were not arrived at by some
misapplication of principle such as would warrant
intervention by this court on the basis that they
are manifestly inadequate – where the respondent
Goulding filed an application for leave to appeal
On appeal
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